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Commissioner Brennan Opposes Special Reporting Requirements on Los Angeles and Long Beach

February 13, 2009

At its meeting of February 11th 2009, the Federal Maritime Commission decided not to seek to enjoin, at this time, the PortCheck Agreement (Agreement No. 201199) entered into by the City of Los Angeles, the City of Long Beach, PortCheck LLC, and the individual marine terminal operators at the two ports.

Unlike his colleagues on the Commission, Commissioner Brennan supports all aspects of the PortCheck Agreement, which sets up a fee collection process for the Clean Trucks Program. Commissioner Brennan believes that the Commission continues to profoundly misconstrue the Clean Trucks Program. From his review of the record, it is abundantly clear that the enormous, long-term economic, health, and security benefits of the Clean Trucks Program outweigh the projections, by some, of cost increases and service decreases.

In particular, he sees no basis for the Commission's continued second-guessing of a key policy judgment made by the City of Los Angeles: namely, that so-called independent owner-operators do not have the control, capital, and economies of scale needed to keep their vehicles in compliance within environmental standards.

Commissioner Brennan supports taking no action against the agreement because he firmly believes that Los Angeles and Long Beach are acting "reasonably" and in compliance with all relevant Shipping Act standards.

Commissioner Brennan also dissented from his colleagues by voting not to require special reports from the parties to the agreement. He believes that the extensive factual record already compiled in this matter, along with the normal information-reporting requirements of the Commission's regulations, are enough for the Commission to assess whether the PortCheck agreement is "substantially anticompetitive" under the Shipping Act.

In Brennan's view, requiring exceptional informational filings of the parties is neither needed nor warranted, particularly in light of the Shipping Act's express policy of regulating "with a minimum of government intervention and regulatory costs." (Shipping Act, section 2).